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2016 DIGILAW 1432 (RAJ)

Gopa Ram Meghwal v. State of Rajasthan

2016-10-04

VIJAY BISHNOI

body2016
JUDGMENT : Vijay Bishnoi, J. 1. This writ petition under Article 227 of the Constitution of India has been filed by the petitioners being aggrieved with the order dated 26.2.2016 passed by the Board of Revenue for Rajasthan, Ajmer, whereby the Board of Revenue has dismissed the reference made to it by the Additional District Collector, Jalore (hereinafter referred to as ‘the Trial Court’) under Section 82 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ‘the Act of 1956’) read with Section 221 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Act of 1955’) vide order dated 19.9.2013. 2. Brief facts of the case are that the petitioners field an application before the Trial Court under Section 82 of the Act of 1956 read with Section 221 of the Act of 1955 while claiming that the land of Khasra Nos. 199 and 198 of village Kharal Tehsil Jalore was recorded in the name of their father, however, the said land was wrongly entered into the name of non-petitioners Nos. 2 to 7. It is contended that the father of the petitioners was a Member of scheduled Castes and as per Section 42 of the Act of 1955 the said and cannot be transferred in the name of a Member of General Caste. In the reference application, the petitioners have essentially prayed for cancellations of the mutation entries Nos. 63 and 69, whereby the name of the non-petitioner Nos. 2 and 7 have been entered in the revenue records. 3. The Trial Court vide order dated 19.9.2013 has made a reference to the Board of Revenue with the recommendation that the judgment and decree dated 3.12.1964 passed by the SDO and the mutation entries Nos. 63 and 69 sanctioned thereafter be set aside. 4. The Board of Revenue has dismissed the said reference vide impugned order on the ground of delay. The Board of Revenue has observed that the reference, for setting aside the judgment and decree passed by the Sub Divisional Officer, Jalore (hereinafter referred to as ‘the SDO’) on 3.12.1964 and for setting aside the 'mutation sanctioned pursuant to that, is made after the delay of 45 years and, therefore, the same is liable to be set aside. The Board of Revenue has observed that the reference, for setting aside the judgment and decree passed by the Sub Divisional Officer, Jalore (hereinafter referred to as ‘the SDO’) on 3.12.1964 and for setting aside the 'mutation sanctioned pursuant to that, is made after the delay of 45 years and, therefore, the same is liable to be set aside. The Board of Revenue has further observed that while making reference, the Trial Court has not given any finding that the judgment and decree dated 3.12.1964 was obtained by practicing fraud or misrepresentation and on that ground also no interference is called for. 5. Learned Counsel for the petitioner, has argued that the judgment and decree dated 3.12.1964 passed by the SDO in favour of the non-petitioner Nos. 2 to 7 is ab initio void and the Board of Revenue has grossly erred in not taking into consideration this aspect of the matter and illegally rejected the reference on the ground of delay only. 6. Heard learned Counsel for the petitioners and perused the impugned order as well as the material available on record. 7. It is not in dispute that for the purpose of making reference under Section 82 of the Act of 1956 no limitation is prescribed however, the Hon'ble Supreme Court as well as this Court in various decisions has held that where no limitation is prescribed the action should be taken within reasonable time. 8. The Hon'ble Supreme Court in Joint Collector Ranga Reddy District & Another v. D. Nursing Rao & Others, reported in (2015) 3 SCC 695 has held as under:- "31. To sum up, delayed exercise of revisional jurisdiction frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law Because, even when there is no period of limitation prescribe for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority." 9. A Full Bench of this Court in Tara & Others v. State of Rajasthan & Another, reported in 2015 (3) WLC (Raj.) 548 has held as under:- "Question No. (v) - Whether any time limit can be fixed for reference under Section 82 of the Rajasthan Land Revenue Act, 1956 and under Section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by the Hindu Idol (Deity). If so, to what extent?" 37. Section 82 of the Rajasthan Land Revenue Act, 1956 provides as follows:- "82. Power to call for records and proceedings and reference to State Government or Board : The Settlement Commissioner or the Director of Land Records (or a Collector) may call or and examine the record of any case decided or proceedings held by any revenue Court or officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and so to the regularity or proceedings: If he is of opinion that the proceedings taken or order passed by such subordinate Court or officer should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, if the case is of a judicial nature or connected with settlement, or for the orders of the State Government if the case is of a non-judicial nature not connected with Settlement; The Board or the State Government, as the case may be, shall thereupon pass such order as it thinks fit. 38. Section 232 of the Rajasthan Tenancy Act, 1955 provides as follows:- "232. Power to call for record and refer to the Board. 38. Section 232 of the Rajasthan Tenancy Act, 1955 provides as follows:- "232. Power to call for record and refer to the Board. - The Collector may call for and examine the record of any case or proceedings decided by or pending before the Revenue Court subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order or decree passed and as to the regularity of the proceedings, and, if he is of opinion that the order or decree passed or the proceeding taken by such Court should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board shall, thereupon, pass such order as it thinks fit: Provided that the power conferred by this Section shall not be exercised in respect of suits or proceedings falling within the purview of Section 239." 39. Neither Section 232 of the Rajasthan Tenancy Act, 1955 nor Section 82 of the Rajasthan Land Revenue Act, 1956 prescribe: any period for exercising the power by the competent authority for calling and examining the record. Where the period is no prescribed in the Statute for exercising the power, the power must be exercised within a reasonable time, except in case of fraud. The reasonable time has been held to be one to three years in State of Gujarat v. Patel Raghave Natha & Others, AIR 1969 SC 1297 , Mansa Ram v. S.P. Pathak & Others, AIR 1983 SC 1239 and State of Punjab v. Bhatinda District Co-operative Milk Producers Union Ltd. (2007) 11 SCC 363 . 40. In a recent case in Joint Collector Ranga Reddy District anti Another v. D. Narsing Rao and Others, (2015) 3 SCC 695 , it was held that where no time limit is prescribed under the Statute for invocation of powers, such power must be exercised within a reasonable period. If the power is allowed to be exercised after decades, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. The suo motu action cannot be taken after a long lapse of time. Absence of any period of limitation does not mean that the power can be exercised at any time, which will make the exercise of power arbitrary and oppose to the concept of Rule of Law. The suo motu action cannot be taken after a long lapse of time. Absence of any period of limitation does not mean that the power can be exercised at any time, which will make the exercise of power arbitrary and oppose to the concept of Rule of Law. Relying on the decision in State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd. (supra), it was held that where no period of limitation is prescribed, the statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period, would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. The Supreme Court further relied on its earlier decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, (2003) 7 SCC 667 in which in relation to Section 50-B(4) of the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Land Act, 1950 providing for suo motu power, it was held that in absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when the contention that the suo motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the High Court was right in not examining the question of fraud alleged to have been committed. The use of the words "at any time" in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised. The exercise of power depends upon the facts and circumstances of each case. In case of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. The words "at any time" must be understood as reasonable time depending on the facts and circumstances of each case. 41. In paragraph 16 of the judgment in joint Collector Ranga Reddy District and Another v. D. Narsing Rao and Others (supra), it was held that though no time limit is prescribed in Section 166-B for exercising suo motu power, however, such power could not have been exercised after a period of five decades and if allowed to do so, it would lead to anomalous position resulting into uncertainty and complications seriously affecting the rights of the parties over immovable properties. In Paragraph 25, it was held as follows:- "25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period." 42. On the aforesaid discussion and in the light of the judgments of the Supreme Court referred to above, we decide the question No. (v) in the manner that even if no time limit has been fixed for reference under Section 82 of the Rajasthan Land Revenue Act, 1956 and under Section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity), a reference can be made within a reasonable time, which will depend upon the facts and circumstances of each case. Even if the fraud is alleged, the power must not be exercised after unreasonable period, such as, after several decades claiming rights over the land." 10. In the light of above decisions I am of the view that the Board of Revenue for Rajasthan, Ajmer has not committed any illegality in rejecting the reference on the ground of delay. 11. Hence, this writ petition is dismissed. Stay petition also stands dismissed.